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October 20, 2004

Seeking news on "alternative sentencing"

Last month, in the wake of the Fourth Circuit's ruling in Hammoud which recommended that district judges "announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a), treating the guidelines as advisory only," I wondered here whether anyone is keeping track of alternative sentences announced in the Fourth Circuit and elsewhere after Blakely. I continue to hope that somebody is tracking the alternative sentencing story — perchance the US Sentencing Commission — because data on how judges are sentencing when "treating the guidelines as advisory only" will likely be very valuable no matter what the Supreme Court does in Booker and Fanfan.

I am also wondering whether the Fourth Circuit's recommendation is actually being followed. Recall that US District Joseph Goodwin of the Southern District of West Virginia thoughtfully explained here why he considered alternative sentencing inappropriate, and that Professor Ronald Wright reported back in August here that most district judges in the Fourth Circuit had not been announcing alternative sentences.

I am now thinking about these matters because an unpublished decision by the Fourth Circuit yesterday suggests that the circuit court itself is not a true believer in alternative sentencing. In US v. Johnson, 2004 U.S. App. LEXIS 21707 (4th Cir.Oct. 19, 2004), the court dropped a footnote in which, after summarily rejecting a Blakely claim by citing Hammoud, the court said it did "not deem it necessary to remand the case so that the district court may announce an alternative sentence."

I continue to suspect that alternative sentencing works better in theory than in practice, but I obviously have no direct "in the courtroom" experience to support this supposition. I hope others working in the Fourth Circuit or elsewhere might use the comments to share any "in the courtroom" experiences with alternative sentencing.

I am an attorney. One problem with the practice of announcing alternative sentences that I haven't seen discussed is that there is the potential for a judge to impose an alternative sentence for the purpose of discouraging a defendant from appealing the primary sentence. Specifically, if a judge announces a "sentencing-factor" enhanced sentence under the guidelines and then imposes a substantially longer alternative "non-guidelines'" sentence, the defendant faces a dilemma about whether to appeal.

When this happens, and trust me it has, the defendant could win the battle on appeal (there is a finding that the guidelines are unconstitutional) but lose the war (he ends up with a longer sentence for his efforts). This would come about if the Supreme Court finds that the guidelines are unconstitutional but directs the Circuit and district courts to adopt the position advanced by Judge Cassell in the Croxford case, and later by a panel of the Eighth Circuit in the now vacated Mooney decision, that if imposition of a guidelines sentence would violate the Sixth Amendment then the judge's exercise of reasonable discretion in deciding the sentence is constrained only by the maximum term of years set out in the applicable statute. If the Supreme Court took this position, then the defendant would then have another battle on his hands to convince the appellate court that the district court's alternative sentence was illegal or an abuse of discretion.

At this point, who can say that the Supreme Court wouldn't adopt the Croxford/Mooney approach?